Online Journalists to Get Their Day in Court

San Jose - After negotiations with the Electronic Frontier Foundation (EFF), Apple agreed on Friday to extend the deadline on a subpoena it issued to an online journalist's Internet service provider (ISP) until after a hearing that will determine whether the subpoena is legal under the First Amendment and California's reporter's shield law. The subpoena seeks information about the journalist's confidential sources and unpublished notes for an article about a future Apple product.

On March 4, EFF will meet Apple's attorneys in Santa Clara County Superior Court to argue that the subpoena and others like it are unlawful because online journalists are protected by the same "reporter's privilege" laws that shield print journalists from having to reveal their confidential sources and unpublished notes. EFF will ask that the court issue a protective order making it official that journalists for AppleInsider and PowerPage do not have to respond to subpoenas seeking confidential news sources.

Apple is currently suing several "John Does" for allegedly leaking trade secrets about a product code-named "Asteroid" to the online journalists. After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find the person who told the journalist about "Asteroid."

At the March 4 hearing EFF will argue that the reporter's privilege extends to information stored by third parties such as a reporter's email provider. It will urge the court to reject Apple's attempt do an "end run" around the reporters privilege by subpoenaing the journalist's ISP rather than the journalist himself.

"The reporter's privilege against disclosing confidential sources protects web publishers like AppleInsider and PowerPage just as it protects newspapers and TV networks," said EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston. "If the reporter's privilege is to continue to protect the free flow of information in the digital age, it must apply to reporters' confidential communications even when they are held by third-party Internet service providers."

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